Why Did Roberts Do It? To Save the Court.

The law, lawyers, and the court.
June 28 2012 3:51 PM

Why Did Roberts Do It?

To save the court.

Read the rest of Slate’s coverage on the Supreme Court upholding the Affordable Care Act.

Justice Roberts
Chief Justice John Roberts

Photograph by R. Strauss/Smithsonian via Getty Images

Sometimes you just have to take one for the team. A wistful thought of that kind must have flitted through the mind of Chief Justice John Roberts today as he announced that the Supreme Court was upholding the Affordable Care Act by the slimmest of margins. 

The lineup was a shocker: Roberts joined the court’s four moderate/liberal justices in upholding the act. Court-watchers knew Roberts would be in the majority, whichever way the case came out, but we expected Justice Anthony Kennedy to be there, too. He wasn’t: Kennedy joined fellow conservative Justices Scalia, Thomas, and Alito in a vehement (and—departing from court practice—jointly signed) dissent. Indeed, the chief justice was the only justice who cast a vote on the individual mandate that was contrary to the political position of the party of the president who appointed him.

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Why did he do it? Quite simply, to save the court. As Jeffrey Rosen has noted, the ACA case was John Roberts’ moment of truth—and today’s opinion proves that Roberts knew it. In the aftermath of Bush v. Gore and Citizens United, the percentage of Americans who say they have “quite a lot” or a “great deal” of confidence in the Supreme Court has dipped to the mid-30s. A 5-4 decision to strike down Obamacare along party lines, whatever its reasoning, would have been received by the general public as yet more proof that the court is merely an extension of the nation’s polarized politics. Add the fact that the legal challenges to the individual mandate were at best novel and at worst frivolous, and suddenly a one-vote takedown of the ACA looks like it might undermine the court’s very legitimacy.

Whatever else John Roberts wants, he doesn’t want that. Though surely not immune from the kind of “motivated reasoning” that polarizes political and legal thinking alike, the chief justice must feel a special institutional responsibility. A cynic might say that Roberts is keeping his powder dry for impending battles that are closer to his heart, such as the constitutionality of affirmative action. But I think Roberts is playing the long game. Assuming good health, he and his conservative colleagues will hold sway on the court for years to come. Roberts wants the institution over which he presides to maintain some remnant of the above-the-fray brand it has created for itself over two centuries. 

Read in this light, Roberts’ ACA opinion is masterful. It opens with a five-page primer on judicial review and limited federal power that was clearly designed, like Chief Justice Earl Warren’s unassuming opinion in Brown v. Board of Education, to be read by laypeople. 

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